You’ve heard of the microblog Twitter, right?

I’ve set up an account there for very short entries about patent law.  It’s at http://twitter.com/fireofgenius

Let me know if you’re also twittering …

I happened across the following footnote in a recent opinion from U.S. District Court Judge Sue Robinson on a motion to exclude expert testimiony:

I note for the record that I am very well aware of the fact that the above captioned case is a patent infringement action. Therefore, I need not be educated on this point by plaintiff in the opening line of every opening brief filed in connection with every motion filed on behalf of plaintiff.

TruePosition, Inc. v. Andrew Corp., No. 05-747, 2007 WL 2429415, at *1 n.1 (D. Del. Aug. 23, 2007).

Sua sponte motion to spank is hereby granted!

A short, entertaining story in the New York Times about an accused infringer’s detective work in finding invalidation prior art:

Mr. Goldin said he spent thousands of hours flying all over the country to search for obscure business contracts and to pick the brains of people in his niche of the financial services industry before finding 48 typewritten pages in the archives of a company called Paymentech in July 2006.

Give it a read!

The Federal Circuit, alone among the U.S. Courts of Appeals, has the power to hear cases before a five-judge panel (rather than a three-judge panel).  It also has the power to decide, by local rule, when it will hear a case with a five-judge panel.  Here’s the key language from 28 U.S.C. § 46(c):

Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.  (Emphasis added).

And the Court has certainly heard patent cases with five-judge panels.  See, e.g., Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991).

So … here’s my somewhat odd idea to help reduce interpanel unpredictability (if one thinks, as some do, that there’s too much such unpredictability): If, after oral argument in a case, a three-judge panel splits its vote (i.e., there’s a dissenter), the case is reassigned to a five-judge panel that includes two more judges (as well as the original three) for a new argument (and more briefing, if needed).  In practical terms, this gives the dissenter the chance to persuade two other colleagues and become a new, three-person majority.  Or not.  Either way, the resulting decision involves more focused consideration by a greater number of the court’s judges.

What do you think?

Today’s NYT has the story on a dust-up between Rebecca Charles, owner of the Pearl Oyster Bar, and erstwhile Pearl sous-chef Ed McFarland’s Ed’s Lobster Bar.

A bit of the story …

In recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress — the distinctive look and feel of a business — to defend their restaurants, their techniques and even their recipes, but most have stopped short of a courtroom. The Pearl Oyster Bar suit may be the most aggressive use of those concepts by the owner of a small restaurant. Some legal experts believe the number of cases will grow as chefs begin to think more like chief executives.

Lord help us. Isn’t the opportunity cost of such litigation awfully high, for a restaurant business where the owner’s attention to things like new recipes is key?

Of course, Mike Madison and Frank Pasquale offer sharp commentary.

UPDATE: And Tim Lee quotes Tom Lee.

Engaging story in the New York Times today, about Edison’s flair for invention and for business.  The author, Randall Stross, has adapted the story from his new Edison biography, The Wizard of Menlo Park: How Thomas Alva Edison Invented the Modern World.  Give the story a look!

If you haven’t seen this bit on net neutrality, you should give it a watch.  It’s somewhat informative, and very funny.

The link is to the video at YouTube.

No, not TED the airline. TED, the Technology, Entertainment & Design conference … an annual talkfest in Monterey. A little bit of history, from the TED site:

TED was born in 1984 out of the observation by Richard Saul Wurman of a powerful convergence between Technology, Entertainment and Design. The first TED included the public unveiling of the Macintosh computer and the Sony compact disc, while mathematician Benoit Mandelbrot demonstrated how to map coastlines with his newly discovered fractals and AI guru Marvin Minsky outlined his powerful new model of the mind. Several influential members of the burgeoning ‘digerati’ community were also there, including Nicholas Negroponte and Stewart Brand.

But despite the stellar line-up, the event lost money, and it was six years before Wurman and his partner Harry Marks tried again. This time the numbers worked. TED has been held regularly in Monterey, California, ever since, attracting a growing and influential audience from many different disciplines united by their curiosity, open-mindedness, a desire to think outside the box… and by the sense of community arising from their shared discovery of an exciting secret. (TED has never had an advertising budget or a PR campaign.)

Streaming video of the TED 2006 talks is now on line. Two that I’ve watched, and enjoyed greatly:

• David Pogue, the personal technology columnist for the New York Times. It has some wonderful satirical songs, as well as some great computer interface design insights.
• Sir Ken Robinson, the author of Out of Our Minds: Learning To Be Creative. He talks about the complex (and often frustrating) relationship between creativity and education.  A quotation: “If you’re not prepared to be wrong, you’ll never come up with anything original.”

Watch ‘em, if you have some web time to burn. Or even if you don’t.

This week’s issue of The Economist has three fun pieces.  All of them focus, in one way or another, on Internet-centered phenomena.  Happily, two of them are openly available at the magazine’s online edition.  (The third, a book review of Chris Anderson’s The Long Tail, is not.  The book, which I happen to be reading right now, is engaging.  Here’s the page for it at Amazon.)

The first, entitled The Ultimate Marketing Machine, explores the increased efficiency of Internet-based advertising strategies.  The second, entitled Apples Are Not the Only Fruit, explores “the economics of France’s attempt to open up iTunes” to mp3 players other than the iPod.

Enjoy!

The LabCorp v. Metabolite case had me thinking … how often do patentees write claims that focus on an assaying-and-correlating sequence of the type under review in LabCorp?

I don’t have an answer to that question.  I can, however, share the results of three searches of the PTO’s database of issued patents.  One can do full-text searching of the claims back to 1976.  From that time to this, the PTO has issued more than 3 million utility patents.  Searching all the claim language, I can report that, as of today (Monday, June 26), there are …

• 101 patents with claims that contain both the terms “correlating” and “assaying”
• 12,245 patents with claims that contain the term “correlating”
• 2,226 patents with claims that contain the term “assaying”

No wonder some folks were worried about the LabCorp case.